Posted
by
timothyon Friday February 21, 2014 @09:46PM
from the good-model-for-us-courts dept.

An anonymous reader writes "The Canadian federal court has released its much-anticipated decision
in Voltage Pictures v. Does, a case involving demands that TekSavvy,
a leading independent ISP, disclose the identities of roughly 2,000
subscribers alleged to have downloaded movies without authorization.
Michael Geist notes that the court was sensitive to the copyright troll concern, noting
that 'given the issues in play the answers require a delicate balancing of privacy rights versus the rights of copyright holders.
This is especially so in the context of modern day technology and
users of the Internet.' In order to strike the balance, the court
required full court approval of the content of any demand letters
and bold warnings that no court had found a recipient liable for any
damages."

The case management judge will make sure the suit goes the way the law allows, without the opportunity to extort settlements. The does will have the chance to defend themselves, and the troll will have to spend cubic yards of money to make a case, or give up and go home.

I expect one attempt to proceed to see if they can frighten someone into pleading guilty, but if the does band together, a roughly 0% chance of success for the troll, whether or not any individual doe is arguably guilty.

The does will have the chance to defend themselves, and the troll will have to spend cubic yards of money to make a case, or give up and go home.

An evocative image, so I was driven to do the math. It's not necessarily a lot of money! A cubic yard of US pennies is worth USD $5233.09. I'm assuming you stack them in rolls so they're touching triangularly like bowling pins, not square like beer bottles. You can squeeze in ~16% more this way. Note this has a volume of 1 cubic yard, but wouldn't be exactly cubical.

* Any/all letters from Voltage MUST be approved by both the Court & CIPPIC, so as not to provide false information to defendants, and coerce them into settlements.* Letter will include a statement that 'no Court has yet found any recipient of the letter liable for infringement and that recipicies should [seek] legal assistance".* Every letter to an alleged infringer will get a copy of the judge's order.* Any subscriber can request a full copy of the order, for which the Plaintiff (Voltage) must pay for.

* Voltage will only receive Name & Address attached to specific IP addresses of the alleged infringers, and nothing more.* There will be a special Judge assigned to this case, and will 'monitor, as necessary, the conduct of Voltage in its dealings with the alleged infringers."

* If Voltage splits a subscriber out of the herd (so to say), the special judge will keep hold of the new case.

* Voltage cannot make statements to the media, releasing defendant names or addresses.

The courts allowed the trolls to get only names and addresses from Teksavvy, and have assigned a judge to sit on the trolls, making sure that there are no extortion letters (letters can be sent, but the judge gets the final edit: no "give us a bazillion dollars or we will take your house, car, drain your bank accounts and sell your organs on the Asian black market"). They are also limiting what the trolls can do as far as filling more suits (if the trolls abuse the courts time/resources, the court will eit

The ISP is not a whistle blower, whose rights to insure the privacy of its clients would be overrulled.If Voltage wants each name, they must go to court. They cannot just threaten the household or business which as recognized URL. Want the name, go to court for each name.

Do not allow threatening to sue for large amounts. Let the courts decide if there is a penalty.

Essentially, if there were 28,000 illegal downloads, then there should be 28000 court cases.

In addition, the court also found that Voltage Pictures has to pay TekSavvy for all costs associated with gathering the data, and that they'll be limited to $5k in damages per person found to infringe.

I particularly like the part where the demand letter to subscribers will include a copy of the court order and "clearly state in bold type that no court has yet made a determination that such subscriber has infringed or is liable in any way for payment of damages."

No pulling the wool over peoples' eyes. I still don't get the summary though.

$5000 per infringer (not per infringement) is the maximum. The minimum is $100, and I've heard word that the court is more likely to impose the minimum. The plaintiff either has to prove actual damages, or can apply for statutory damages, between $100 - $5000 at the judges discretion. The copyright act stipulates that the judge needs to consider whether the infringement was for non-commercial purposes, whether it was for private purposes, and whether it would constitute hardship for the defendant to pay.

Not per infringer, per lawsuit. Only way to get $5k per infringer is to sue each infringer separately.

38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally,...(b) in a sum of not less than $100 and not more than $5,000 that

In Canada the loser generally pays fees so it's still viable, just delays when they get their money. Many are just in it for the quick buck (just like movies, first 45 days of release are where the money is - they have little interest in the long tail) but big studios may see this as a long term cashcow.

Though legal costs are awarded to the victor in Canadian litigation suits, these are normally on a partial indemnity basis which usually works out to between 50-66% of the actual costs. Even with full indemnity costs, recovery is still usually only 75% of actual. Different factors play into what the court determines to be reasonable (e.g. in Ontario [canlii.org]). But even with full indemnity, odds are good that pursuing the actions here would be at a net loss. That said, the company might be willing to spend a few mill

It's not $5k per person, it's $5k per lawsuit. If they go after all 2000 infringers in Voltage v Does, they will be limited to $5000 statutory damages, if they choose statutory damages; they can still try to prove actual damages on a per plaintiff basis. Since actual damages is (lost profit of one copy of "jarhead")*infringer, and they actually have to prove those damages on a balance of the probabilities (i.e. everyone with open wifi routers walks), they're not going to make much money.

"there is some evidence that Voltage has been engaged in litigation which may have an improper purposes".

And he assigned a case management judge to supervise in concert with the interveners. Polite, Canadian, and organized so that an honest suit would go forwards, but a troll would find themselves caught between making a loss or committing contempt of court.

But the Canadians misunderstand (just like the US judges they get "some evidence" from) the problems a good-faith plaintiff faces in these cases. All the 'protections', severance, etc. do is raise the costs of enforcement. If you pay $450 in filing fees for 450 IP addresses and send a polite but strong letter, you don't really have to worry about astronomical settlement amounts. If you require each suit to proceed individually, with court oversight of any initial contact letters, pretty soon you're talki

But of course, behaving like a "good-faith plaintiff" does not fit in with the revenue model. The whole original plan was to try and scare people into settling without going into a courtroom. Because, as soon as you get in the courtroom, there are Judges and sometimes Juries who you can never completely control. Costs also increase. So, you pick a test case you think you can win, prosecute the shit out of that one, even though you know you'll never get any real money, the judgement is the prise. Keep it really high, so that when you get your next batch of infringers you can threaten them with complete destruction. That way, more people will be inclined to settle without you every having to go back in the Courtroom again.

Of course, the Canadian rules have broken this model. Now, they have to pay for the list of names. They will have to pay to bring someone in to actually sue to make the point, and determine how the Canadian Courts are actually going to award damages. With a max infringement level of $5000, this is going to be close. Even if they are awarded some court costs, there will be few big payoff days. I suspect they are hoping that one of the secret treaties (TPP maybe) will force the Canadians to change the rules and come back to a more US style of play, and actions like this will be more placeholders to "prove" that litigation like this is truly important.

I depend critically on copyright to protect my book income, and am a good-faith plaintiff (via my publisher), but we do not have a credible reason to go after people who download individual copies. In fact, we make copies of "Using Samba (O'Reilly) available with every copy of the samba program.

The people I worry about are professional crooks, who print pallet-loads of the book and sell them cheap. Ditto unauthorized translators, because I don't get royalties for massive quantities of books. Historically, publishers like mine have been able to use the courts in their traditional form and file individual suits to stop unauthorized printings.

To get value from grandma (assuming she's a sysadmin grandma) we make the book available on-line, as part of a subscription service. This allows us to benefit from her just wanting to refer to it for a few days, or wanting to print out the section from Chapter 3 on setting up XP. She knows she can find it in the samba download, but it's easier to spend a few dollars and save the time. Just like it's worth the price of a professionally-printed book that she can make notes in, put yelow stickes on and read in the bathtub.

Class actions are a relatively new development, and were originally permitted so as to allow large numbers of individual plaintiffs to band together to sue a single malefactor. Allowing a single plaintiff to sue very large numbers of possible malefactors is unusual. The courts are suspicious of it, and wonder if it is legitimate to sue more than one grandma for $8,000, or even $100, for a blue-ray that costs $8.00 Canadian on Amazon (down from $20.99)

The balance between an honest plaintiff and one engaging in "speculative invoicing" is the subject of learned debate amoung the legal profession in Canada: for a non-learned discussion, see http://www.slaw.ca/2013/01/16/... [www.slaw.ca] I had the honour of editing this GTALUG submission to the larger debate.

So, to answer your question, I'm not comfortable asking Grandma for any money after the fact. I want her to go to Amazon, pay $8.00 up front and stream a legitimate copy of the movie. If I find a publisher making it available for $2.00 who isn't paying me royalties, I'll sue them.

Speculative invoicing is a British term, describing the behaviour of law firms who have since been disbarred for a specific form of copyright trolling. The troll knows that, and freaked out at a seemingly innocuous term.

The system Canada uses to determine who can get a permanent resident card is based on points. You get so many points for your occupation (assuming it's on the list, which changes periodically), so many points for speaking English and/or French, etc. If you have enough points you can apply for your PR card (pay the fee, send them your fingerprints, medical examination, etc.). Once you've lived in Canada for about three years you can apply for citizenship.

The system Canada uses to determine who can get a permanent resident card is based on points. You get so many points for your occupation (assuming it's on the list, which changes periodically), so many points for speaking English and/or French, etc. If you have enough points you can apply for your PR card (pay the fee, send them your fingerprints, medical examination, etc.). Once you've lived in Canada for about three years you can apply for citizenship.

The quickest route to Canadian citizenship used to be being a Somali Warlord or a member of the warlord's family. Welfare cheques for all...and a nicely appointed apartment. At one point "professional escorts" were actively recruited and granted fast-track permanent resident status. The Government of Canada apparently needed more companions for the politicians when they lived in Ottawa and were away from their families.

As always, the best approach is to marry a Canadian and then be very careful that you follow the application procedure to the letter.